1. These are two appeals against a decree of the Subordinate Judge of Birbhum setting aside a putni sale at the suit of two of the defaulting putnidars. One appeal is on behalf of the zemindars, preferred by the Receiver to their estate; and the other is preferred by the assignees of the auction-purchaser of the putni.
2. The name of the putni is Naikpore, and the names of the putnidars, as recorded in the zemindars' books, are Madan Mohan Mondul, Hara Mohan Das, Nittyanund Mondul, and Ram Kisto Mondul. The two first named are dead, and the two plaintiffs are their sons and representatives. The plaintiff Ananta Lal was owner of an 8 annas share of the putni by inheritance from Madan Mohan, and alleges that he had purchased the 2 annas share of Ram Kisto. The other plaintiff, Radha Kisto, was owner of a 4 annas share; and Nittyanund, owner of the remaining 2 annas share, was a pro forma defendant in the suit.
3. The plaintiffs sued to have the sale set aside upon the grounds that the notices required by Regulation VIII of 1819 had not been published according to law, and that the proceedings were likewise bad in law, because they were taken against the deceased putnidars and the two survivors, and not against the plaintiff's personally. They further claimed as against the purchasers that, if the sale was valid, it did not destroy the right of the plaintiffs inasmuch as it was made on their account, and the earnest money deposited at the time of the sale was their money, the bidder being defendant No. 5, the son of the gomastah of the first plaintiff. It was alleged that the final purchasers, defendants Nos. 7 to 10, obtained the property by collusion with the defendant No. 5 and his father, and well knowing that the plaintiffs were the true purchasers. It was not denied that there had been default in payment of the putni rent such as warranted proceedings being taken under the Regulation: but it was alleged that the whole amount of the arrears had been sent by the plaintiffs through the defendant No. 5 to Suri to be paid in, either to the zemindars' agent or to the Collectorate, in time to save the putni from sale, but that the defendant No. 5, instead of paying the money, allowed the property to be put up for sale, purchased it for Rs. 5,310, and paid the earnest-money, 15 per cent, out of the money which had been entrusted to him for the liquidation of the arrears. He informed the plaintiff No. 1 of what he had done and it was arranged that the plaintiff's should deposit the balance of the purchase-money in due time, and that defendants Nos. 5 and 6 should relinquish the purchase in their favour. But subsequently it is said they resiled from this agreement, and made a profit of Rs. 200 by obtaining the balance of the purchase money from defendants Nos. 7 to 10, and then conveying the putni to them for Rs. 5,510.
4. The defendants put in three written statements in accordance with their respective positions in regard to the suit.
5. The zemindars contended that there was misjoinder, as they had no interest in common with the purchasers. They contended that the plaintiffs had no right to sue, as they were not the recorded putnidars, and they denied that there had been any defect in the publication of the notices.
6. The defendants Nos. 5 and 6 denied any breach of faith. They denied that the plaintiffs had sent the whole of the rent in arrears to be paid in to save the putni from sale. They said that only the plaintiffs' own shares had been sent; that the zemindars' agent declined to accept part payment only, and so the sale proceeded. The defendant No. 5 in the interests of the plaintiffs bid for the property, and was declared the purchaser, and then informed the plaintiff No. 1 what he had done. Plaintiffs being unable to raise the balance of the purchase-money, and the earnest-money being in danger of being forfeited the defendants Nos. 7 to 10 were induced to take up the purchase, and that the plaintiff No. 1 was a party to the negotiation with them.
7. The defendants Nos. 7 to 10 in their defence adopted the line taken by the zemindars as to the validity of the sale, and defended their own purchase from defendant No. 5 as against the plaintiffs by denying any knowledge that defendant No. 5 had bid on their behalf, and alleging that the plaintiff No. 1 had fully assented to the transaction to which they were parties.
8. On these pleadings 13 issues were laid down by the lower Court, which have been reproduced in extenso in the judgment of the Subordinate Judge who found on each issue in favour of the plaintiffs; and consequently decreed the suit in their favour giving them possession of 14 annas of the putni.
9. In the appeals all the findings of the lower Court have been challenged; and the whole case has been ably and exhaustively argued from every point of view, with the result that we are compelled to differ from the lower Court as to many of the issues, while we agree with it on others.
10. The first issue was as to the plea of misjoinder of parties and causes of action, and of multifariousness. The Subordinate Judge has decided this issue in favour of the plaintiffs merely on the ground that the purchasers are necessarily proper parties to a suit brought to set aside putni sale on the ground of non-service of notice. The Subordinate Judge has thus missed the whole point of the plea which was directed against the prayer, that if the sale be held good in law, the purchase by defendants Nos. 7 to 10 should not be maintained against the plaintiffs, but the purchase should be held to have been for plaintiffs. Babu Mohini Mohun Roy, for the plaintiffs, respondents, admitted that he could not support the lower Court's decision on this issue, and admitted that unless the sale itself be found bad in law, the whole suit must be dismissed.
11. On the second issue we agree with lower Court in holding that the plaintiffs are entitled to maintain a suit to set aside the sale, although, they are not registered as putnidars: that they were de facto and de jure putnidars in the room of their deceased fathers is admitted; and Section 11 of the Regulation expressly gives the right to sue to any party desirous of doing so.
12. The third issue is perhaps the most important of all, viz., were the notices of sale as required by law duly published? The law is contained in Clause 2 of Section 8 of Regulation VIII of 1819, and it requires a three-fold publication of the notice of sale--the first to be 'stuck up' in a conspicuous part of the Collector's kutcheri, the second at the zemindars' sudder kutcheri, and the third to be similarly published at the kutcheri or at the principal town or village upon the land of the defaulter, and it is provided that this last publication shall be attested by the production of a receipt signed by the defaulter or his manager; or, in default of this, by other modes of attestation mentioned in the section. The lower Court found that there was no proper publication either in the Collector's kutcheri or at the defaulter's.
13. A question was raised in that Court, as well as here, as to which party must bear the burden of proof in respect of the publication or non-publication of the notices. The lower Court placed that burden on the defendant zemindars, and hold that they had not proved proper publication. The lower Court gave no particular reason for relieving the plaintiff of this burden, but in this Court the vakil for the respondents has supported this ruling by pointing out that the Regulation makes the zemindars exclusively answerable for the observance of the forms prescribed, and by reference to the authority of the case of the Maharajah of Burdwan v. Tarasundari Debi I.L.R. 9 Cal. 619; L.R. 10 I.A. 19 and Mahomed Zamir v. Abdul Hakim I.L.R. 12 Cal. 67 and of an unreported case, Hurro Doyal Chowdhry v. Mahomud Gazi Chowdhry (Ante p. 699) decided lately by Pigot and Macpherson, JJ. The first two cases do not lay down that the plaintiff need not give prima facie evidence of non-publication sufficient to require the defendant zemindars to prove the affirmative: and having regard to the general principle that a plaintiff is bound to prove his case, and to the terms of Section 14 of the Regulation, which is the law authorizing a suit to be brought to set aside a putni sale, I confess that I do not see why the plaintiff should be relieved of the burden of starting his case. The Regulation entitles any person to sue the zemindar for the reversal of the sale, and upon establishing a sufficient plea to obtain a decree. Non-service of notice may be a sufficient plea, but to allege it is not of itself sufficient to establish it; and if no evidence as to publication was adduced on either side, it seems to me that the plaintiff would not be entitled to a decree. The provision in Section 8, that the zemindar is exclusively answerable for the observance of the forms, means, I take it, that the Collector shall not be held responsible; and does not mean that in a suit by the defaulter to set aside the sale on the plea of non-observance of the forms he shall not be required to do more than allege that they were not observed. In the present case, however, there is evidence on both sides as to the notice at the defaulter's kutcheri, and it is therefore unnecessary to decide where the onus lay: and the case of Hurro Doyal Chowdhry v. Mahomad Gazi Chowdhry (Ante p. 699) does support the lower Court's view.
14. As regards the notice at the Collector's kutcheri, although the plaintiffs adduced no evidence, the defendants did produce evidence which proves in the plaintiffs' favour that the notice was not published in the manner prescribed by the law, viz., by being stuck up. The Nazir's return of service sets out that the notice had been stuck up in a conspicuous part of the kutcheri; but at the trial, the Nazir, being examined as a witness for the defence, deposed that it was not stuck up, but that it was otherwise published in a manner which, he said, had prevailed during his own incumbency and the incumbency of his predecessors. Upon this evidence we must agree with the lower Court in holding that the publication at the Collector's kutcheri was not in accordance with the law. We shall have later to consider whether in the present case this defect in the publication is a sufficient plea for the reversal of the sale.
15. The lower Court also found, as has been said, that the notice had not been duly published at the defaulter's kutcheri in the mofussil; and if any one of the three notices prescribed by the law is more important and more essentially necessary than the others it is this, for it is especially the notice to the defaulter himself, and to the under tenure-holders in the putni. As regards the publication of this notice, we entirely dissent from the finding of the lower Court, which we consider to be opposed to the weight of evidence, and equally opposed to reason and probability. For it is admitted that for several years the rent of this putni had never been paid until after process for sale had been taken out by the zemindars, and that the half-yearly kists had on each occasion been paid only in time to save the putni from sale. It is admitted that on each previous occasion the notice had been duly published at the defaulter's kutcheri; and on this particular occasion there has been in this Court no contention that the notice did not in fact come to the knowledge and into the possession of the defaulters. So that there is no reason for supposing a priori that the zemindars, who never failed before, failed on this occasion to effect the due publication of the most essential of the three notices required by law.
16. So much for probability. Then as to the direct evidence, both parties adduced witnesses; the plaintiffs to prove that no notice was published, and the defendants to prove the affirmative. The lower Court, without any comparison of the evidence on both sides, observes that the plaintiffs have produced oral evidence to show that no notice was served, and does not examine that evidence to see what it is worth; and, on the other hand, offers a decidedly hostile criticism of the evidence for the defence, and, as we think, unreasonably rejects it as unworthy of credit. But in our opinion nothing can be more worthless than the evidence adduced by the plaintiffs, including the deposition of the plaintiff Ananta Lal himself, who on almost all the most important points in the case has been flagrantly untruthful, and we think there is absolutely no reason for discrediting the evidence as to this notice of Karali Charan Mukerjee, Gholam Mundul and Raghunundun Singh, the latter being the peon who served the notice. The lower Court seems to have considered that the receipt filed contradicts the oral evidence as to the manner of service, and it finds fault with the receipt itself. We think that neither of these reasons are good ground for questioning the oral evidence of publication. The receipt purports to show that Ananta Lal, through his agent, received the notice, and the term 'receipt' implies that the giver has received the thing for which he gives a receipt, and this receipt declares that the notice was served by Raghunundun Singh. We take this to mean that it was duly served according to law: and the oral evidence proves that it was so. The lower Court objects to the receipt on the ground that, while it purports to have been written and signed by the gomastah of Ananta Lal, Kulodanund Mukerjee, it was really written by his son, Karali Charan, who was not the defaulter's manager. But the circumstance is satisfactorily explained by Karali, who states that he, not being himself competent to grant the receipt, brought the peon to his father's house to get it; that his father being ill in bed authorized him to write and sign the receipt in his name, which he did in his father's presence. There are, indeed, certain legal objections to the receipt not noticed by the Court below; but however that may be, we are satisfied, apart from that document, that the publication of the notice in the mofussil is most amply proved by the oral evidence. The legal objection to the receipt is that, whereas it purports to have been given by the manager of one only of the defaulters, and therefore should have been signed also or supplemented by another one signed by three substantial persons residing in the neighbourhood in attestation of the notice having been brought and published on the spot, it was in fact signed by persons who were not present at the publication; and had there been any doubt upon the evidence that the publication had really been effected according to law, this defect in the receipt would have been fatal to the sale. The learned pleader for the plaintiffs, respondents, relied upon the cases of the Maharajah of Burdwan v. Tarasundari Debi I.L.R. 9 Cal. 619; L.R. 10 I.A. 19 and Mahomed Zamir v. Abdul Hakim I.L.R. 12 Cal. 67 as showing that whenever the publication of the notice at the defaulter's kutcheri is disputed, the evidence of the fact must be preserved in the way prescribed. But we do not understand their Lordships in the Privy Council, or the learned Judges who decided the latter case, to lay down that if other evidence establishes the due publication beyond doubt, a defect in the receipt will vitiate the sale; and that this is not so is, we think, established on the authority of the case of the Maharani of Burdwan v. Krishna Kamini Dasi I.L.R. 14 Cal. 365 in which Tarasundari's case was discussed. This disposes of the 3rd and 4th issues; and we agree with the lower Court only as to that part of the 3rd issue which relates to the notice in the Collector's kutcheri.
17. The 5th and 6th issues relate to the fact that two of the recorded putnidars were dead before these proceedings under the Regulation were taken. We think that the fact is immaterial, and that the Court below was wrong in holding that the proceedings were illegal by reason of their having been directed against dead persons; for proceedings under the Putni Regulation taken for the realization of arrears of putni rent are not taken against persons at all, but against the tenure. And the zemindar is quite right in setting out in his petition and notices the name of the putni and the names of the putnidars as recorded in his books. The findings therefore of the lower Court upon these issues cannot avail the plaintiffs. And in the view we take of this matter, the 7th issue is not relevant, and the finding of the Court below, that the plaintiffs are not estopped from objecting to the proceedings on the ground taken in the 5th issue, does not affect the case; and the 8th issue, as to whether the putni was sold for an inadequate price, is equally irrelevant in this suit and need not be decided.
18. The 9th issue is the question--'Is the putni sale liable to be set aside?' This means simply should the suit be decreed or dismissed? and depends upon the findings on all the material issues raised. The lower Court answered the question in favour of the plaintiffs; that being the necessary result of deciding all the other issues in their favour. We have had to dissent from the lower Court as to many of those issues, and our final decision of the question must depend upon the effect upon the sale of the defect in the publication of the notice in the Collector's kutcheri. And it seems convenient to discuss that question now; for the remaining issues in the case do not touch the validity of the sale proceedings, but relate to the question whether, in the event of their being declared to be valid, the plaintiffs are entitled to be treated as the purchasers; and their vakil has admitted that unless they are entitled to the reversal of the sale they cannot in this suit obtain any other relief.
19. The result of our deliberations as to the effect upon the sale of the non-publication in the manner prescribed by law of the notice in the Collector's kutcheri is unfortunately a difference of opinion between us. My learned colleague is of opinion that the defect in the publication is fatal to the sale, and necessitates its being set aside; for he holds that in fact there was in law no publication at all. I, on the contrary, hold that, although the notice was not 'stack up,' it was sufficiently published; and that therefore the non-fulfillment of the letter of the law is not a sufficient plea within the meaning of Section 14 to entitle the plaintiffs to have the sale reversed.
20. I am of course aware that this Court and the Judicial Committee of the Privy Council have repeatedly held that the process prescribed by the Regulation must be followed, and that neglect to observe a substantial portion of that process is a sufficient plea within the meaning of the Regulation. But it has been held that not everything prescribed to be done is a substantial part of the process, e.g., the obtaining of a receipt if there is other satisfactory proof of the service in the mofussil, Sona Beebee v. Lall Chand Chowdhry 9 W.R. 242 and the sticking up in the Collector's kutcheri of the zemindar's petition for sale, Ahsanulla Khan Bahadoor v. Hurri Churn Mozoomdar I.L.R. 17 Cal. 474; and therefore that defect in these matters does not necessarily invalidate the sale.
21. It is certain that no Court would be satisfied with the fulfillment of the mere letter of the law if in substance the law had been ignored. For instance, in such a case as the present one, the letter of the law would be obeyed if the notice were stuck up in a conspicuous part of the Collector's kutcheri with its face to the wall, or upside down, or so high in the wall as to be illegible, but such 'sticking up' would not be held to fulfil the object of the law. Conversely, it seems to me that if the Court finds that there has been substantial publication in the Collector's kutcheri it ought not to set aside the sale, because there was no literal sticking up of the notice. The real question is whether the notice was made public in such a manner that anybody interested in the matter had an opportunity of becoming aware of it. I think that the Nazir's evidence, while it shows that the notice was not 'stuck up,' shows also that, however irregularly, there was substantially a publication of it, i.e., the public had opportunities of inspecting it. The Nazir deposes that his practice in regard to the putni sale petitions and notices made over to him for publication is to keep them in his 'serishta,' and that the public come and see them there. 'The place where I sit is a conspicuous place, and people come to that place and see these petitions, and there is no objection to it.' He says again: 'I allow every one to see the petition and notice. The notice is served in this way since the time of my predecessor's predecessor, and my predecessor, and in my time also;' and he had been Nazir four years.
22. The Court would not, I think, be justified in construing this evidence to mean that in fact the public have no access to the notices. I think it means that the public, that is, the mukhtars and revenue agents who are the interested public in a Collector's kutcheri, know where the putni sale notices are to be seen, and that they do inspect them freely at their pleasure. The irregular practice described by the Nazir has been so long established that it is as efficacious probably for the fulfillment of the object of the law as would be the literal carrying out of the provision that the notice shall be stuck up; and I therefore consider that the absence of the sticking up is not in this case a sufficient plea for the reversal of the sale, and I would consequently dismiss the suit, reversing the decree of the Court below.
23. But assuming that the defect found in the publication of the notice in the Collector's kutcheri is one which would, under ordinary circumstances, entitle the plaintiffs to a decree for the reversal of the sale, we must proceed to consider the other issues and determine whether the other circumstances of the case warrant the making of a decree against defendants Nos. 7 to 10 for restitution of the putni. And in regard to this question there are two aspects of the case: one presented by the conduct of the plaintiffs in claiming that the purchase was made by themselves, and the other by the fact that the nominal purchaser who had bid on behalf of the plaintiffs, or one of them, they subsequently assenting to the course he had taken, had conveyed the property to the defendants No. 7 to 10 with the express assent of at least the plaintiff No. 1.
24. The plaintiffs are, I think, entitled to assert, as they do, that the purchase at auction by Karali was made for themselves, because Karali's own evidence shows that he informed the plaintiff No. 1 that he had made it for him, and the latter shows that he understood it to be equally on account of plaintiff No. 2, and both of the plaintiffs acquiesced in what Karali had done; and no doubt they considered that he had done the best possible thing for them, and we feel certain that had they been able to make good the purchase-money in due time, his suit would never have been instituted. But as they failed to do this, they now endeavour to get the sale set aside; and in furtherance of this object they have endeavoured in the lower Court successfully to fasten upon Karali Charan Mukerjee, defendant No. 5, the imputation of having acted dishonestly towards the plaintiffs by not paying in the amount of the putni rent in time to avoid the sale, and in then having for his own purposes bid for the property, so they alleged that to him had been made over the full amount due, Rs. 1,886-8. Karali declared that he only received the 10 annas share payable by plaintiff No. 1, Rs. 1,156-8, and that plaintiff No. 2 sent his 4 annas share by his own man, Bonamali. The share of 2 annas payable by the pro forma defendant, Nittyanund Mondul, was not sent at all.
25. The Subordinate Judge has believed the plaintiffs' allegation, and rejected Karali's story as false. We have come to the opposite conclusion, and think that all the circumstances support Karali Charan, and that the plaintiffs' story is false, and the entry of Rs. 1,886-8 in the khata-book of the plaintiff No. 1 is a fabrication of very improbable evidence. The story told is that plaintiff No. 1 had by him only a small proportion of the required sum; that he therefore borrowed from plaintiff No. 2 money enough to make up his own share of the arrears, and also received from him the whole balance due both for his 4 annas share and the 2 annas share of Nittyanund, and that he made over the whole sum to Karali, after entering the money in his khata-book. The khata in which this money was credited and debited is that which concerns the plaintiff's silk business. There seems to us no good reason why the rent contributed by the plaintiff No. 2 for his own share and for that of the pro forma defendant, Nittyanund, should be entered in any khata of plaintiff No. 1, and still less in that of his silk business. We have abundant reason for disbelieving his testimony in several particulars, and we believe that the entry in the khata was a mere fabrication of evidence for the purpose of this suit.
26. On the other hand, the circumstances admitted seem to us strongly to support Karali's story. Bonomali, the servant of plaintiff No. 2, certainly went with him to Suri, and we believe him when he says that Bonomali conveyed his master's share of the rent; and Nittyanund supports the story by stating that at Suri they asked him to contribute his share of the rent that the arrears might be paid and the sale stayed. He declined to do so, as he did not care to retain the property. There was no reason whatever why Karali should not have paid the whole rent in if he had it; and he acted apparently in good faith and entirely for the benefit of his master in making the purchase and in depositing the earnest-money out of the amount he had brought in from plaintiff No. 1.
27. We observe also that the fact that plaintiff No. 2 received back the identical notes which were said to have been contributed by him in respect of his own share, supports the theory that those notes had been in the custody of his own man, Bonomali.
28. Then it is admitted that Karali's action was reported immediately to plaintiff No. 1, that he did not offer any remonstrance or censure Karali for having let the putni be sold, but on the contrary readily acquiesced in what had been done. Up to this point, therefore, there is not the slightest reason in our judgment for the Lower Court's dictum that Karali had acted dishonestly towards the plaintiff, and the plaintiff No. 2 also assented subsequently to the arrangement proposed. But when it was necessary to pay in the balance of the purchase-money, the plaintiffs had been unable to raise it, and they were in danger of forfeiting the earnest-money deposited. The only means of saving it was to get others to take the purchase off their hands, and this led to the conveyance by Karali, the declared auction-purchaser, to the defendants Nos. 7 to 10, who advanced the requisite sum upon Karali giving them a promissory note and an agreement to execute a kobala after the auction purchase had been rendered complete; and we think there can be no doubt that plaintiff No. 1 did sign that note as a witness, and that his denial of it on his oath is one among several instances of perjury committed by him in this case.
29. We are satisfied that he fully assented to the conveyance by Karali to defendants Nos. 7 to 10, and that he cannot be allowed now to take advantage of any defect in the proceedings in order to deprive them of the benefit of their purchase; and even if the sale under the Regulation was bad, we must hold that the plaintiff No. 1 is not entitled to oust the defendants Nos. 7 to 10 from the 10 annas share of the putni of which he was proprietor, at any rate without repaying them the amount of their purchase-money. No offer to do this has been made.
30. There was, as has been mentioned, a slight excess in the amount at which the defendants Nos. 7 to 10 purchased the putni over that which was bid at the auction sale, and we find that a dispute occurred between the plaintiff No. 1 and Karali Charan as to who should have the benefit of the surplus. And under all the circumstances of the case there seems good reason for believing that this dispute was the real cause of this litigation. If this be so, there is all the less reason for allowing the plaintiff No. 1 to disturb the title of defendants Nos. 7 to 10.
31. As regards the position of plaintiff No. 2 in respect of those defendants, there is no evidence that he was any party or privy to the conveyance to them, and therefore if the auction sale be found invalid by reason of defect in the publication of the notice in the Collector's kutcheri, we cannot say that this plaintiff will not to entitled to recover his share of the putni from the hands of the defendants Nos. 7 to 10.
32. In that view the result would be that the zemindars' appeal No. 126 would be dismissed with costs, and that the appeal of the defendants Nos. 7 to 10 would be decreed with costs in proportion as against plaintiff No. 1, and dismissed as against plaintiff No. 2 with costs in proportion.
33. But if the sale is not invalidated by the defect in publication of the notice, the result will be that both appeals will be decreed with costs.
34. The last issue is as to whether the purchase by defendants Nos. 7 to 10 was fraudulent and with knowledge of the plaintiff's right. The Lower Court finds in favour of the plaintiffs that the purchasers were aware of their right. We have no reason to doubt the correctness of this view: we fail to see how any fraud can be imputed or brought home to them on that account. Their knowledge seems to us immaterial so far as this suit is concerned.
35. I regret I have the misfortune to differ from my learned colleague upon the matter indicated in his judgment, viz., 'as to the effect upon the sale of the non-publication in the manner prescribed by law of the notice in the Collector's kutcheri.' He is of opinion, as I understand him, that although the notice was not published in accordance with Section 8, Regulation VIII of 1819, still it was sufficiently and substantially published, and therefore the putnidar has not made out a 'sufficient plea' within the meaning of Section 14 of the Regulation to have the sale set aside.
36. The only evidence that we have in the matter of the publication of the notice in the Collector's kutcheri is that of the Nazir, and I am unable to hold upon that evidence that the requirements of the law in this respect have been sufficiently or substantially complied with.
37. In the Maharaja of Burdwan v. Tarasundari Debi I.L.R. 9 Cal. 619; L.R. 10 I.A. 19 the Judicial Committee of the Privy Council, in referring to Regulation VIII of 1819, observed as follows: 'That is a very important Regulation, and no doubt it was enacted for a certain and defined policy and ought, as a rule, to be strictly observed. Their Lordships desire to point out that the due publication of the notices prescribed by the Regulation forms an essential portion of the foundation on which the summary power of sale is exercised, and makes the zemindar, who institutes the proceeding, exclusively responsible for its regularity.'
38. The Judicial Committee uses the expression 'due publication' This, I think, refers not only to the actual publication of the notice, and the time at which it is to be published, but also to the mode and place of publication. It will be observed that the Regulation gives to the zemindar a summary power, a power to bring to a sale putni without any suit; and therefore it seems to me chat the directions prescribed by the Regulation as to the mode and place of service must be strictly followed.
39. Section 8 of the Regulation distinctly lays down the mode and place of the publication of the notice, viz., that it is to be stuck up in a conspicuous part of the kutcheri. The Nazir's evidence shows that this was not done. The notice was not only not 'stuck up' in the kutcheri, but it was not placed in a conspicuous part of the kutcheri,' so that the public, whenever they chose to inspect it, had the fullest opportunity of doing so. The Nazir no doubt, says that the place where he sits is a 'conspicuous place' in the kutcheri, and people come to that place and see these petitions; and there is no objection to it,' and, further, that he allows every one to see the petitions and notices; but it will be observed that nobody could have any access to the petitions and notices without the permission of the Nazir. And that officer in the early part of his deposition says (as I understand him) that he used to keep all the petitions and notices (i.e., in regard to all the putnis to be sold) in one and the same bundle. If he kept all the petitions and notices in the same bundle, it is obvious that nobody could ascertain whether any particular putni was, or which putnis were, advertised for sale, unless and until, with the permission of the Nazir, the bundle was opened and the papers in it were examined. This I am disposed to think is no publication of the notice of sale. Then, again, the Nazir's 'serishta' would be kept open between certain specified hours of the day, and the public would have no opportunity of inspecting the notices at any other time than when the Nazir would be in his 'serishta.' The Nazir says what has been the practice in previous years as to the publication of notices; and no doubt the mukhtars and revenue agents would very probably know where to look for these notices. But the mukhtars and revenue agents are not the only members of the public who might desire to acquaint themselves with such notices. It seems to me that the practice which has been followed in other years does not constitute the act of the Nazir a due publication of the notice, which under the law it is not.
40. The law in Section 8 lays down distinctly, as has already been noticed how the notice is to be published: it is to be stuck up in a conspicuous part of the kutcheri; and Section 10 says that at the time of sale the notice previously stuck up in the kutcheri shall be taken down.
41. If the Regulation is to be strictly followed, and if the publication of the notice in the Collectorate is not directory but mandatory, and if it is a substantial part of the process prescribed by the Regulation, it seems to me that an essential requirement of the law has not been observed in this case, and that a 'sufficient plea' within the meaning of Section 14 has been made out. If an authority were required for this, I would refer to the case Hurro Doyal Chowdhry v. Mahomed Gazi Chowdhry (Ante p. 699) decided by PIGOT and MACPHERSON, JJ., on the 27th May last, and which is referred to in the judgment of my learned colleague. There the failure on the part of the zemindar to prove publication of the notice in the Collector's kutcheri was held to be fatal to the validity of the sale. The judgment no doubt speaks of the 'notices,' but it will be observed on a reference to the decision of the Lower Appellate Court in that case that the zemindar did prove the service of the other two notices. I take it, therefore, that the learned Judges held that the sale was bad by reason of the notice not having been served in the Collector's kutcheri.
42. There is another matter in regard to which I should like to say a word; and that is as to the true position of the plaintiff No. 2. The plaint, indeed, alleges, as has been pointed out by my learned colleague, that the purchase made by Karali at the auction was on behalf of both the plaintiffs, but the evidence seems to show clearly that this was not so, and that it was a purchase with the money belonging to the plaintiff No. 1 alone, which Karali had been entrusted with. Neither Karali nor Bonomali (the servant of the plaintiff No. 2) had been authorized to bid at the sale; but they both did so, and apparently against each other, and the property was eventually knocked down to Karali, who subsequently reported the matter to the plaintiff No. 1, and the latter by his acts and conduct ratified what had been done. But so far as the plaintiff No. 2 is concerned, all that appears on the evidence of the two plaintiffs is that plaintiff No. 1 afterwards mentioned the matter of this purchase to the plaintiff No. 2, and said that if they (the two plaintiffs) could pay the balance of the purchase-money, they would get the property; and the plaintiff No. 2 was apparently content with this, and expressed his willingness to pay. He, however, subsequently went to Suri to get copies of the sale proceedings, evidently with the object of taking action to have the sale set aside; and it does not appear that, beyond the conversation he had with plaintiff No. 1, he did any act indicating that he acquiesced in what had been done by Karali, much less in what Karali and the plaintiff No. 1 did in the matter of the sale of the property to the defendants Nos. 7 to 10. In these circumstances, I think that, notwithstanding the allegation in the plaint that the purchase at the auction was made by both the plaintiffs, the fact seems to be that it was a purchase with the money of the plaintiff No. 1 alone, and that the plaintiff No. 2 had really nothing to do with it. He had also nothing to do with the transaction entered into with the defendants Nos. 7 to 10, and it therefore seems to me that, if the auction sale is bad, the plaintiff No. 2 is entitled to get back his share from the hands of the purchasers, and in this respect I entirely agree with my learned colleague.
43. As to the question of the onus of the proof in connection with the publication of the sale notices which was discussed before us, I prefer to express no opinion, as it does not arise in this case.
44. In consequence of the difference of opinion between their Lordships 'as to the effect upon the sale of the non-publication in the manner prescribed by law of the notice in the Collector's kutcheri,' these appeals were referred to the learned Chief Justice for his decision upon such difference of opinion. The parties were represented at this hearing by the same pleaders as at the hearing before the Division Court, and the same arguments were used.
45. This is a suit brought by the putnidars to set aside the sale of a putni which took place under Regulation VIII of 1819 for default of payment of putni rent.
46. The matter came before two Judges of this Court, and they have each of them written a judgment in which they have agreed upon everything but one matter, and that one has come before me for decision upon their disagreement. The question upon which they have differed is whether what took place with reference to the notice of this sale at the Collector's serishta was a compliance with Section 8 of the Regulation, and if it was not, whether the non-compliance was sufficient to invalidate the sale.
47. When I first read the papers it struck me that the question was really a question of fact arising on the construction to be placed upon the evidence of the Nazir, who describes what did take place, but upon speaking to the two learned Judges upon the matter, I found that there was no difference of opinion between them as to the fact. They both considered that that evidence showed one thing, and consequently the only thing I have to decide is whether, upon the view of the evidence which they take, a sufficient compliance with the provisions of the Regulation has been shown.
48. What they considered was the case--and I accept their finding upon that matter of fact--is this, that the practice in this Collector's kutcheri, with reference to these notices, was that the Nazir, who sat near the entrance to the Collector's kutcheri, instead of sticking up the notice and the petition for sale against the wall of the kutcheri, and instead of sticking it up anywhere, kept the various petitions which came before the Collector for sale together with the notices relating to them in a bundle, that he kept that bundle in his own possession, that at night he locked it up in some safe place for safe custody, but that in the day he took it out from the place of safe custody where he had placed it the night before, and kept it near him, but in some place where the whole bundle could be soon by any one coming to the kutcheri. He then goes on to say that he allowed any one who chose to ask for it or wished to see it to inspect the bundle. The Judges find, as a fact, and I agree with them in their view of the matter, that the only persons who would see the contents of the bundle, including the petitions relating to the various lots to be sold, and the notice according to which those lots would be put up for sale, were persons who knew where to find them, in the sense that they were persons who knew whom to ask for them, and that they would go to the Nazir and ask him to show the bundle which contained the notices. That being the state of the facts, the question is whether this is a compliance with the law.
49. Now Clause 2 of Section 8 of the Regulation directs that the petition to the Collector shall be stuck up in some conspicuous part of the kutcheri, with a notice that if the amount claimed be not paid before the 1st of Jeyt following, the tenure of the defaulter will on that day be sold by public sale in liquidation. As it seems to me the meaning of that is that the petition and the notice are to be advertised; and as to that it is material to notice that, in Section 10 of the same Regulation, the word 'advertise' is actually used, which strongly confirms my view that the meaning of sticking up in a conspicuous part of the kutcheri is that it is to be advertised in the ordinary acceptance of the word. Now 'advertise,' in the ordinary acceptance of the word, means placing it in such a position that persons who have to use that place for their ordinary business may see it. It is clear that if the petition is put in such a place that only those who ask for it may see it, it is not advertised in any sense whatever. So that I come to the conclusion that the provisions of the Regulation that this petition is to be stuck up in some conspicuous part of the kutcheri has not been complied with at all; and then the question arises whether that in itself is sufficient to invalidate the sale.
50. As to that 1 think the judgment of their Lordships of the Privy Council in the case of The Maharajah of Burdwan v. Tarasundari Debi I.L.R. 9 Cal. 619; L.R. 10 I.A. 19 is conclusive. In delivering the judgment of the Judicial Committee, Lord TZGERALD, after quoting different portions of the second Clause of the section with which we are at present concerned, says: 'That is a very important Regulation, and no doubt it was enacted for a certain and defined policy, and ought, as a rule, to be strictly observed. Their Lordships desire to point out that the due publication of the notices prescribed by the Regulation forms an essential portion of the foundation on which the summary power of sale is exercised, and makes the zemindar, who institutes the proceeding, exclusively responsible for its regularity.'
51. It seems to me that when one has come to the conclusion that this notice was not published or advertised in the Collector's kutcheri which is the conclusion at which I have arrived, that the judgment of the Privy Council concludes the matter, because they say that this is to be strictly complied with, and they point out that the zemindar is to be exclusively responsible for the strict performance of it. One argument which has been pressed before me is that the zemindar is responsible for what takes place in the moffussil, but is not responsible for what takes place in the Collector's kutcheri. I think that argument cannot be sustained, and for this reason: the words of the clause are that 'the zemindar shall be exclusively answerable for the observance of the forms above prescribed,' and among the forms above prescribed is the form that the petition shall be stuck up in a conspicuous part of the kutcheri.
52. The only other case which it is necessary to notice is the judgment of Mr. Justice NORRIS and Mr. Justice Macpherson in Ahsanulla Khan Bahadoor v. Hurri Churn Mozoomdar I.L.R. 17 Cal. 474. In the judgment at page 480, their Lordships say--'It was further urged by Mr. Woodroffe that non-compliance with the provisions of the Regulation, which require that the petition shall be stuck up in some conspicuous part of the kutcheri, was fatal to these proceedings, We think, to use the words of the Privy Council in the case of The Maharani of Burdwan v. Krishna Kamini Dasi I.L.R. 14 Cal. 365 that this publication of the petition is not a substantial portion of the process to be observed by the zemindar. No injury could result to the putnidar or any one holding under him by the non-publication of this petition, which, as I have already pointed out, is only the method prescribed by the Regulation for putting the executive machinery in force.' That may well be so, but that is not the case here. The objection here is not that the petition was not stuck up, but that the petition and notice were not stuck up. The petition, it is true, does not affect the purchaser or intending purchaser in any way, but the notice does. The notice is a notice of what lots are to be sold, and when the sale takes place it is upon that notice that the lots are sold, and it shows the order in which the lots will be sold, and is the very thing which the public ought to have access to, and which the public ought to be in a position to see: and which should be so situated as to catch the eye of the public, and bring persons to know that such and such properties are being offered for sale, and therefore is the very thing which ought to be stuck up in a conspicuous part of the kutcheri.
53. In the result I think that this notice was not stuck up at all within the meaning of this clause of Section 8 of Regulation VIII of 1819, and, in accordance with the decision of the Privy Council, I think that the sticking up or publication of it was essential to the validity of the sale, and consequently, agreeing with the decision at which Mr. Justice GHOSE has arrived, the sale, to the extent mentioned in the judgment of the learned Judges who heard the case in the first instance, must be set aside, and a decree made in accordance with the said judgment.